FEDERAL COURT OF AUSTRALIA Fenton v Swan Hill Aboriginal Co-Operative Ltd [1999] FCA 1757 LINDA FENTON v SWAN HILL ABORIGINAL CO-OPERATIVE LIMITED VG 441 OF 1998 O'CONNOR MOORE & NORTH JJ 20 MAY 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 441 OF 1998 BETWEEN: LINDA FENTON Appellant AND: SWAN HILL ABORIGINAL CO-OPERATIVE LTD Respondent JUDGE: O'CONNOR, MOORE & NORTH JJ DATE OF ORDER: 20 MAY 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is allowed in part. 2. The order of the primary judge dismissing the application for review is set aside. 3. The respondent pay the appellant the sum of $7,200 by way of compensation plus interest fixed at $1,800, a total of $9,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 441 OF 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: LINDA FENTON Appellant AND: SWAN HILL ABORIGINAL CO-OPERATIVE LTD Respondent JUDGE: O'CONNOR, MOORE AND NORTH JJ DATE: 20 MAY 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 This is an appeal by Ms Linda Fenton against the judgment of a judge of this court of 4 September 1998 dismissing a review against a decision of a Judicial Registrar. It is common ground that the Judicial Registrar was acting as a Judicial Registrar of the Federal Court of Australia when he dismissed an application the appellant had made under s 170EA of what is now the Workplace Relations Act 1996 (Cth) ("the Act"). 2 In that application the appellant alleged that the termination of her employment with the Swan Hill and District Aboriginal Co-operative Ltd ("the Co-operative") had been in contravention of s 170DE and s 170DC of the Act. 3 The learned primary judge heard the review over several days and his Honour made various findings about the extent to which the appellant had failed to discharge or fully discharge her duties as an employee of the Co-operative. Those findings were not challenged in this appeal and it is not necessary to repeat them. 4 On 20 November 1995 the appellant was sent a letter terminating her employment. The stated reason for the termination was the appellant's refusal to remove her name from a petition which was critical of the way in which the Co-operative was being managed. The learned primary judge concluded, however, that the real reason for her dismissal was the appellant's failure to discharge or fully discharge her duties as an employee. No submission was made in the appeal by the appellant that, as a matter of law, s 170DE operated only on the stated reason if it was not, in fact, the reason. We accept for present purposes that this is so. 5 The findings of the learned primary judge that the real reason related to the appellant's performance of her duties, and that it was a valid reason, were plainly open on the evidence and the findings his Honour made. The learned primary judge had the benefit and advantage of hearing the evidence, including the evidence of the two directors of the Co-operative who participated in the decision to dismiss the appellant. The advantage of hearing the evidence of the directors was, in the circumstances, a considerable one. 6 We are not satisfied that the learned primary judge erred in making the findings he did, that the reason for the termination was as stated by him in his judgment or that he erred in his finding that it constituted a valid reason. 7 The learned primary judge did not expressly address whether s 170DC had been contravened. In our view it was and it is necessary to refer to some of the findings made at first instance to explain why it was contravened. 8 At a meeting on 16 November 1995 the appellant's performance of her duties was discussed by Mr Addison, an officer of the Victorian Employers Chamber of Commerce and Industry, retained to act for the Co-operative, and Mr Harris, an officer of the Australian Services Union representing the appellant. The learned primary judge found that it was likely that this discussion took place after the directors of the Co-operative had met to discuss with Ms Fenton her performance. Addison and Harris agreed on a regime designed to address the areas of concern relating to the appellant's performance of her duties. What was not resolved was whether the appellant would withdraw her name from the petition. 9 Thus, by the end of the day on 16 November 1995 the appellant would have understood that in relation to the performance of her duties, agreement had been reached about how she would conduct herself to address the criticisms of her. It was implicit in that agreement that she would not be dismissed for reasons relating to the matters to which the agreement related. It would not have been apparent to her that her prior conduct was going to lead to or might lead to the termination of her employment. Had she been aware of that, she might have given the Co-operative some greater assurance than given to that point about the way she would conduct herself in the future. She may have given the Co-operative some additional explanation about why she had conducted herself in the way that had attracted the criticism. In this way she would have had the opportunity to defend herself, faced with the prospect of impending dismissal, in the way contemplated by s 170DC. She was not given that opportunity and, in the circumstances, she should have been. Thus s 170DC was contravened. 10 It was common ground that reinstatement would not, in the circumstances, be an appropriate remedy and that any remedy should take the form of compensation. 11 The assessment of compensation in a case where s 170DC has been contravened involves a consideration of what is likely to have occurred if there had been no contravention. In the present case the agreement reached between Harris and Addison may have endured and the appellant may have performed her duties to the satisfaction of the management of the Co-operative. Our assessment, having regard to the findings made by the learned primary judge, about earlier requests to improve and the appellant's response to them, is that there was a prospect that she would not have done so. Some allowance must thus be made for the possibility that the appellant's employment would have been terminated at some stage comparatively soon after 16 November 1995. In our view the appropriate measure of compensation is approximately four months' salary, namely $7,200. 12 We order that the appeal be allowed in part and we set aside the order of the learned primary judge dismissing the application for review. We declare that the respondent contravened s 170DC in terminating the appellant's employment and we order the respondent pay the appellant $7,200 by way of compensation plus interest which we fix at $1,800, a total of $9,000. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices O'Connor, Moore and North. Associate: Dated: 29 February 2000 Counsel for the Applicant: Ms B Wearne (with Ms J A Benson) Solicitor for the Applicant: Embleton & Associates Pty Counsel for the Respondent: Ms M Young Solicitor for the Respondent: Garden & Green Date of Hearing: 18 and 20 May 1999 Date of Judgment: 20 May 1999